Legislation

Civil Liability Act 2002 (NSW) s5PNSW
General test for Standard of Care under this act – accepted medical practice, does not apply when a doctor is alleged to have been negligent in failing to provide information to a patient.

Guardianship Act 1987 (NSW) s37NSW
Outlines the statutory need for consent in cases where the patient is incapable of giving consent: who may give consent and when consent is not necessary.Guardianship Regulations 2005 (NSW)NSW
Provides definitions of special and major medical and dental treatment and the requirements for consent to be in writing if practicable.

Mental Health Act 2007 (NSW)NSW
Provides for non-consensual treatment for patients considered mentally ill or mentally disordered. Must be for the person’s own protection from serious physical harm or protection of others from serious physical harm.

Hart v Herron (1984) Aust Torts Reports ¶80-201NSW
Case of a man at Chelmsford Hospital who underwent Deep Sleep Treatment and Electro Convulsive Therapy. It was held that even though the patient had voluntarily admitted himself to the hospital, this did not imply consent to the treatment provided. The patient was further successful in suing for false imprisonment. Note the link is to a further appeal case in 1996.

Ljubic v Armellin [2009] ACTSC 21ACT
Patient had consented to hysterectomy but her ovaries were also removed. The judge found that the removal of the ovaries without consent was an actionable trespass. Shows that a practitioner’s honest and reasonable belief that the patient has consented is not a defence to trespass.

Rogers v Whitaker (1992) 175 CLR 479Cth
Outlines requirements for consent to treatment and the need for patients to be informed in broad terms of the nature of the procedure intended, to avoid a claim in trespass. It also outlines doctor’s duty to provide information about material risks of a procedure to a patient. Failure to do so can result in a claim in negligence. Notes that a signed consent form is not conclusive evidence that the patient agreed to the procedure or was adequately informed of the risks.

Reeves v R [2013] NSWCCA 34NSW
All that was necessary for consent in criminal law was a basic understanding of the nature of the procedure. The jury had been misdirected by the trial judge on the nature of consent. Nevertheless, it was clear that the patient had not consented to the removal of her labia and clitoris. Bathurst CJ found that the doctor’s guilt was beyond a reasonable doubt.

Wallace v Kam [2013] HCA 19 (8 May 2013)Cth
The High Court found that the policy of informed consent is to protect a patient from injury, the risk of which is unacceptable to them. Where the injury actually sustained is not the result of such risk, there can be no liability. The patient’s claim was unable to satisfy the two limb causation test.